BOARD DATE:	  19 December 2013

		DOCKET NUMBER:  AR20130007596 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests his undesirable discharge be upgraded to a general under honorable conditions discharge. 

2.  He does not provide an explanation for the upgrade.

3.  He does not provide any additional evidence.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  After having prior service in the Army National Guard, on 27 January 1964, the applicant enlisted in the Regular Army.

3.  His disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice on:

* 30 March 1964 for being absent without leave (AWOL) from 3 to 10 March 1964
* 12 August 1965 for failing to go at the time prescribed to his appointed place of duty on 9 August 1965
* 2 December 1965 for missing bed check on 1 December 1965

4.  On 24 November 1965, he was convicted by a special court-martial of being AWOL from 26 August to 27 September 1965.  He was sentenced to confinement at hard labor for four months, a forfeiture of $83.00 per month for a like period, and reduction to E-1.  On 3 May 1966, the unexecuted portion of his sentence to confinement at hard labor for four months was remitted.  

5.  On 16 March 1966, the applicant's commander recommended that he be discharged under the provisions of Army Regulation 635-208 (Personnel Separations-Discharge-Undesirable Habits and Traits of Character).

6.  In the applicant's statement, undated, he acknowledged that he had been advised of the basis for the contemplated separation action, its effects and the rights available to him.  He waived his right to counsel, a personal appearance before and consideration of his case by a board of officers.  He also elected not to submit a statement in his behalf.

7.  The applicant acknowledged he understood that he may be furnished an undesirable discharge, that he may be deprived of many or all Army benefits, and that he may be ineligible for many or all Veterans Administration benefits. He also acknowledged that he understood that he may be ineligible for benefits under both Federal and state laws and that he may expect to encounter substantial prejudice in civilian life if he were issued an undesirable discharge. 

8.  On 2 March 1966, the applicant underwent a psychiatric evaluation in which he was considered to be mentally responsible for his acts and had the mental capacity to participate in legal proceedings.  The psychiatrist indicated that the applicant was a candidate for separation under the provisions of Army Regulation 635-208 or 209. 

9.  On 18 April 1966, the appropriate authority approved the applicant's discharge under the provisions of Army Regulation 635-208.  He directed that the applicant be issued an Undesirable Discharge Certificate.  

10.  On 12 May 1966, the applicant was discharged under the provisions of Army Regulation 635-208, due to unfitness, with an undesirable discharge.  He had completed a total of 1 year, 10 months, and 19 days of active duty service with 147 days of lost time. 

11.  Army Regulation 635-208, then in effect, set forth the policy and procedures for the administrative separation of enlisted personnel for unfitness, including undesirable habits and traits of character.  It provided that a board of officers would convene for the elimination of enlisted personnel having undesirable habits and traits of character.  A recommendation for discharge because of undesirability would be made in the case of an enlisted person who repeatedly committed petty offenses not warranting trial by court-martial.  When discharged because of undesirable habits or traits of character, an Undesirable Discharge Certificate was normally considered appropriate.

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  Army Regulation 635-200 also provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The available evidence confirms that all requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process.  His discharge accurately reflects his overall record of service.  

2.  The evidence of record further shows the applicant received nonjudicial punishment and a court-martial conviction for misconduct.  He also had 147 days of lost time due to being AWOL and confinement.  Based on this record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service unsatisfactory.  Therefore, he is not entitled to a general or an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_X____  ___X_____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      __________X_______________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20130007596





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ABCMR Record of Proceedings (cont)                                         AR20130007596



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